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CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault

Tuesday, May 09, 2017 @ 8:37 AM  

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Appeal by the accused, Speers, from a conviction for sexual assault. The accused acknowledged having engaged in sexual activity with the complainant. The sole issue at trial was consent. The complainant testified that she did not consent to the activity with the accused. Three other witnesses testified of their interaction with the complainant following the activity, but did not give any direct evidence on the issue of consent. The accused did not testify. He relied on embellishments and exaggerations in the complainant's testimony that were established on cross-examination, and on her lack of credibility or reliability due to her drug addiction and criminal record. The accused was convicted by a judge sitting with a jury. He appealed on the basis the jury charge was unfair and unbalanced, as it failed to sufficiently expose the frailties in the Crown's case raised during cross-examination.

HELD: Appeal dismissed. The trial judge sufficiently summarized the evidence in her instructions to the jury. The accused did not lead any evidence. It was a case where the only issue was consent and only one of the parties involved in the admitted sexual touching provided evidence on what had occurred. The complainant's addiction issues and criminal record, while relevant to her credibility, were not direct evidence about whether she had consented to the sexual touching. There was no requirement for the trial judge to spend equal time summarizing each side's theory of the case in the jury charge. The manner in which the charge was structured was entitled to deference. Despite imbalances, the charge, when considered together with counsel’s closing submissions, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied, and the positions of the parties.

R. v. Speers, [2017] O.J. No. 2090, Ontario Court of Appeal, H.S. LaForme, G.J. Epstein and G. Huscroft JJ.A., April 26, 2017. TLD-May82017006